Monday, August 31, 2015

The Wall Street Journal
somehow got its hands on internal GAB e-mails regarding the John Doe.
The Journal Sentinel reported on the revelation but decided to make the
thrust of its story the belief of one GAB staff attorney, Shane Falk,
that Scott Walker really was a target of the investigation. This
contradicted a public statement by Special Prosecutor Fran Schmitz that
he was not. There was, apparently, bickering among the prosecutors.

I think the paper missed the story. Completely.

The more significant revelation - completely unreported by the
Journal Sentinel - was that Falk was concerned about the impact of
Schmitz' statement on the Burke campaign. Following Schmitz' statement
that Walker was not a target, Falk blew up. He wrote three consecutive
e-mails (including one that accused Schmitz of lying) that included the
following:

If you didn’t want this to have an effect on
the election, better check Burke’s new ad. Now you will be calling her a
liar, This is a no win. I encourage you to roll with it, or tone down
the press release a bit more to focus on how many times you said
‘alleged’ or say that people are drawing conclusions that have not yet
been proven in a court of law or something.

In other words, a lawyer from the GAB was concerned that Schmitz was
hurting the Burke campaign. That's a rather significant revelation.

Now, I appreciate that there is a benign reading of this. Falk may
not have wanted the investigation to affect either candidate. Of
course, there is no indication that he expressed concern over other
statements and leaks which placed Walker in a bad light. But perhaps
they just haven't come to light.
In addtion, the e-mail must be read in
light of Falk statement - in another e-mail - that the "sheeple" who
elected Walker might have done it even in the absence of what he
regarded as "dark money" and "propaganda."

But more fundamentally, it ought to have been no concern to Falk how
the GAB or prosecutors' actions affected Burke's campaign. She decided
to turn the investigation into a political football. If the guy in
charge of the investigation didn't think the investigation pointed to
Walker, it should have been of no moment that this contradicted a Burke
campaign ad. She, after all, was the one who decided to run it. If
Falk thought Schmitz didn't understand the investigation he was running,
that should have been the issue - not concern for Burke.

No matter how you view this, I should think the fact that a
supposedly non-partisan and neutral investigator was complaining about
contradicting Burke's politicization of the investigation is quite
newsworthy.

Tuesday, August 25, 2015

We see two political sentiments motivating powerful minorities of voters. The first is nativism, seen in the candidacies of both Donald Trump and Bernie Sanders. The targets are illegal - and sometimes legal - immigrants and free trade.

There are some legitimate concerns about the former. A nation ought to have a secure border and need not accept persons in the country unlawfully as a complete fait accompli, entitled to all the accoutrements of citizenship. But mass deportations are both unrealistic and undesirable and our economic woes are not caused by hard-working Mexicans.

Trump and Sanders' railing against free trade simply highlights their shared economic ignorance. And, no, the fact that you can make money on real estate deals and licensing your name does not mean you understand how governments ought to regulate - and not regulate - markets. It means you know how to get yours. Nothing wrong with that, but it is not necessarily a translatable skill in this context.

But Sanders and Trump are doing well (although neither will ever command a majority) and much of their appeal is not about the particulars of immigration policy or international trade, but, as I say, the sentiment. It is about the notion that our problems can be blamed on someone else. They are doing something to us. What we need to do is blame them.

The #BlackLivesMatter movement operates in an equally emotion-laden but fact free environment. There are indeed enormous problems - including enormous problems with violence in the black community - but they are not caused by the police. Even if we assume that all are unjustified, officer-involved shootings are, at most, a rounding error in calculating black victimization rates. Indeed, while the question is vexed, it is not clear that blacks who have contact with police are more likely than whites who have contact with police to become involved in a violent confrontation with officers.

Anytime a police officer uses force against a citizen a thorough investigation is in order. Because we must allow some people to use lethal force to enforce the law, we must ensure that they use it only to enforce the law and only to enforce it. But politicizing the question is flat out demagoguery.

And it is evasive demagoguery. It is the demagoguery of a grievance industry that has failed to deliver in much the same way as the nativists egged on by Trump and Sanders will fail to deliver.

Monday, August 17, 2015

In a column yesterday in the Milwaukee Journal Sentinel, Emily Mills argues, again, for a blatantly unconstitutional campaign finance scheme. She wants public financing with limits on expenditures. The law is clear that expenditure limits can be imposed on only on candidates who choose to accept public financing. It is also clear that expenditure limits cannot be imposed on those who those who refuse it. The law is clear that independent persons and organizations remain free to spend what they want.

But Mills apparently wants to go beyond that. She wants to stop spending and then permit it to continue on those terms that she approves of. As she puts it, she wants to kick everyone out of the pool and then invite every one back into the pool - if they'll play by the Mills Rules.

But the Supreme Court has said that you can't kick people out of the pool. You can't prevent people from combining their resources (although you can limit the size of contributions to candidates) and using them to express themselves on candidates and issues.

I do appreciate that people on the lament this robust protection of association and expression just as they increasingly oppose the rest of the First Amendment. The omelette of equality requires breaking a great many eggs, if you will.

Tuesday, August 11, 2015

There's really no question that Donald Trump's performance in the GOP debate was childish and boorish. Often he simply blustered and stumbled to barely coherent responses, He bragged about buying politicians and stiffing his creditors. He whined about being treated unfairly and confused common standards of decency with political correctness. He asked us to believe that he can bend foreign governments to his will. Yet he can't even handle Megyn Kelly.

In the days since then, he's only made it worse. I understand that Twitter is not exactly a forum for the expression of any thought that is much more than a sentiment, but his feed reads like that of an over fresh high school kid. The man is an embarrassment.

And yet there are people for whom he apparently strikes a chord. They are either willing to overlook his aggressive ignorance and peevish megalomania or, worse, mistake them for virtue. Some of us seem to believe that the more a politician shows disregard for common courtesy and the facts, the more he's speaking "truth" to some imagined "power." They mistake bombast for candor and vulgarity for strength.

When Trump is wrong (and he often is), his supporters see it as being "unscripted." They see his complete lack of depth and detail on any policy question as a commitment to "action" rather than "talk." That no one seems to know what that "action" will be (other than building a wall on the border) does not matter. The guy builds a few casinos, licenses his name to a lot more and fake-fires people on television. He'll get stuff done.

Some on the left want to say that Trump offers some kind of unveiled conservatism, but that's preposterous. He is not conservative. He is a big government crony capitalist who has fed at the subsidy trough and advocated for eminent domain abuse. He is pro-choice (or was, until yesterday afternoon) and a supporter of Obamacare. He has contributed to Hillary Clinton. If anyone in the current GOP field would share Obama's ambitious view of what a President can and ought to do - who would use his pen and phone rather than the tools the Constitution provides - it is Trump.

I am not sure that much of his support can be articulated in political terms. He is, as some one wrote, the first "post-policy" candidate. His proposals generally boil down to "I'll be terrific." He is someone who appeals to voters who judge politicians in the same way that they judge movie stars, mistaking celebrity for competence and peacock bravado for insight. He may be the first sign, as Neil Postman once wrote, that we may well actually amuse ourselves to death.

But nothing is that simple. Trump does tap into a resentment of the status quo that can be found across the political spectrum. He appeals to the belief that there is a "they" out there (including, ironically, guys like him) who are taking advantage of guys like us. Who better to tame the one-percent than one of their own? His sometimes ugly appeal to nativism - blame Mexico! blame China !- is present on both the left and the right. Trump wants to build a physical wall. Bernie Sanders wants to build one with trade restrictions.

But he has an appeal to some conservatives as well. For those inclined to the right, there is frustration that our leaders too often assume office and come to prefer power to principle. They don't reshape our government as much as they reshape themselves. Maybe someone who doesn't act like a politician will be different. But, of course, difference is only different. It's not necessarily better.

Because his appeal is to sentiment and not reason, it's just about impossible to argue with a Trumpkin. They have as little patience with reality as he does. They seem to believe that Putin will swoon before the Donald's faux Alpha Male persona. He'll do things that no one else can or will do because … well … just because.

This is a very limited appeal. Trump does worse in two-way match-ups than almost anyone in the GOP field and he will never get more support than what he has now. Sixty-two percent of the public say that they wouldn't vote for him under any circumstance.

And the support he has will erode. It is easy to say you like someone to a pollster, but harder to actually vote for him. When a candidate's appeal is novelty and entertainment and the frisson of poking in the Man in the eye, he has a short shelf life. These things get old and boring.

In the end, politics is not about emotional release. However real the frustrations of the left and the right, populists like Trump are rarely the answer. The government cannot be seized by a strong personality who will make the world anew. It cannot be restructured by someone who refuses to understand the issues and offers his impatience for them as a virtue. Playground bullying - name calling and strutting - do not constitute discourse.

Eventually the voters - or enough of them because you can fool some of the people all of the time - figure this out. Many of the people who now support Trump haven't thought much about it. But they will.

Monday, August 10, 2015

Ernie Franzen says that Scott Walker should listen to local school principals who 1) want more money from the state and 2) want the state to leave them alone to spend this additional funding as they wish. These principals bemoan the fact the local school boards have much less control over school funding and operational decisions than they did just "a few decades ago." He notes that some of them come from Republican areas - as if school boards in those areas imposed political litmus tests on their hires.

Here is a fact that the legacy media seems allergic to: Over almost any significant period of time you want to look at, per pupil expenditures on K-12 education has increased at a rate well above the rate of inflation. For example, according to the United States Department of Education, from 1987 to 2012, real per pupil spending on K-12 education in Wisconsin increased from $ 7960 to $ 11,946. That is a real increase of 50.1%. This is exclusive of federal funds (which have also increased).

No, that is not a misprint. During the same period that the principals bemoan the loss of local control, local school districts got 50% more to spend. Now, I remember 1987. It wasn't a different world. Urban school districts had challenges. Teachers had to be paid. Children were learning.

During this same period in which school districts received much more funding, certainly we saw improved results. No. No, we actually didn't. By every measure we have, achievement and attainment remained flat. We spent a lot more money and we didn't get any smarter. And while it is true that spending has stepped back a bit since 2011 (although the increase in real spending over the almost any relevant period remains robust), Act 10, like it or not, also substantially reduced school costs. However you look at it, over the "a few decades." schools have gotten a lot richer and haven't got any better.

Now, I suppose it is possible that schools that enjoyed a 50% real increase in funding while yielding no improvement in results are "underfunded." But it sure is unlikely. In fact, the claim is pretty much preposterous.

There is no doubt that local control has diminished during this same period. School districts have revenue caps and Act 10 restricted the scope of collective bargaining. Federal money is never ever free,
But it hardly lies in the mouths of local school districts to question the founders of their feast. If the state is going to substantially increase its share of the bill for K-12 education, it is going to want to make sure that the money is spent properly. It may do this well or poorly, but it is going to do it.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.